Just a few months ago, South African advocates, attorneys and candidate attorneys alike were celebrating therulingof an arbitrator attached to the Dispute Resolution Centre (“DRC”) of the Metal and Engineering Industries Bargaining Council in the matter betweenCoetzee v Autohaus Centurion.

In this matter, the applicant employee had applied to be legally represented at an arbitration. Rule 43 of the DRC rules states that legal practitioners may not represent a party to a dispute at the DRC if the dispute concerns an allegation that an employee was dismissed because of his/her misconduct or incapacity, unless the parties agree to such representation or the arbitrator exercises a discretion in favour of permitting legal representation. The arbitrator came to the conclusion that section 25 of the Legal Practice Act, 2014 supersedes this rule and the equivalent rule in the Commission for Conciliation, Mediation and Arbitration Rules (“CCMA Rules”), namely rule 25. Section 25 states that a legal practitioner has the right to appear “in any court in the Republic or before any board tribunal or similar institution” but “subject to any other law”.

Perhaps predictably, this ruling did not find favour with the CCMA. In the CCMA’s first directive for 2019, effective as at 23 March 2019, the CCMA sought to clear the air in respect of the allegations of a conflict between the CCMA Rules and the Legal Practice Act.

The conclusions and arguments set out in the directive can be summarised as follows:

1. first and foremost, it argues that the arbitrator’s decision inCoetzee vs Autohaus Centurionwas wrong.
2. section 25 of the Legal Practice Act must be read with sections 115(2A)(k) and 210 of the Labour Relations Act, 1995 (“LRA”). Briefly, these sections state that the CCMA has the power to make rules that regulate the right of any person to represent any party in, inter alia, arbitration proceedings and where there is a conflict the provisions of the LRA and the provisions of any other law, the provisions of the LRA will prevail.
3. the Legal Practice Act does not seek to regulate the operation of the justice system. Rather, section 25 of the Legal Practice Act only qualifies legal practitioners to appear in different courts and tribunals, where they have met certain requirements. These requirements are found in the relevant rules of the particular court or tribunal that the legal practitioner seeks to appear in.
4. Rule 25 represents “a proper exercise of power” by the CCMA in accordance with the provisions of section 115(2A)(k) and in no way conflicts with the provisions of the Legal Practice Act.
5. even if it were the case that there was a conflict between the Legal Practice Act and the LRA, the LRA (which would prevail between the two Acts) expressly gives the CCMA the power to regulate who may and may not represent parties at any of its processes, including at arbitration. In giving effect to section 115(2A)(k) of the LRA and accordingly, Rule 25 of the CCMA Rules, nothing has changed.
6. therefore, legal practitioners and candidate attorneys do not enjoy an automatic right of appearance at certain CCMA processes and their right of appearance at the CCMA, is and will always be, subject to the CCMA Rules and its limitations.
7. accordingly, during conciliation, arbitration and facilitation processes at the CCMA, Rule 25 of the CCMA Rules is definitive on the issue of legal representation. Most notably, where a dispute at arbitration stage relates to a dismissal involving misconduct, incapacity due to ill-health or poor work performance, or a compliance order/written undertaking in respect of monies owing, CCMA commissioners retain their discretion to refuse or permit legal representation.

Comment

Two important questions arise from this episode. The first is what legal status, if any, such a directive issued by the CCMA has? While it may be argued that it is necessary for the CCMA to be able to provide guidance to its commissioners on certain issues, would unconsidered compliance with such a directive by a commissioner not lead to the argument that a commissioner has not applied his or her mind to the issue dealt with in the directive?

The second is what impact a directive to CCMA commissioners will have on arbitrators appointed by bargaining councils? While the rules governing bargaining council arbitrations are derived from collective agreements rather than from the LRA itself, they often closely follow the CCMA rules.

More litigation in this regard is likely.

Reviewed by Peter le Roux, an executive consultant in ENSafrica’s employment department.